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On “Violence Against Women” On Violence Against Women Bennett Capers* I. INTRODUCTION We all know the statistics. One in three women has experienced domestic violence.1 Nearly one in five women has been raped.2 Quite simply, it is not safe being a woman. Or a girl for that matter.3 It is definitely not safe being a co-ed on campus.4 Or a woman in prison.5 Or a female gamer in the virtual world of gaming.6 And there is danger on public streets, if the response to a viral video of a woman being catcalled in New York City is anything to go by.7 Even women who have been trained to use physical violence are at risk. I am referring to the Stanley A. August Professor of Law, Brooklyn Law School. B.A. Princeton University; J.D. Columbia Law School. E-mail: [email protected]. The genesis for some of the ideas contained in this Essay first originated in remarks given at a panel entitled Sexual Assault and Violence Against Women at the symposium Locking Up Females, Failing to Protect Them, and Punishing Their Families and Children, held at Southwestern Law School. So my first thanks go to my co-panelists from that event for a lively exchange of ideas. My second thanks go to Aya Gruber, the guest editor of this Ohio State Journal of Criminal Law symposium, for inviting me to participate in this symposium and prompting me to think more deeply about those earlier remarks, and to adapt those remarks into this Essay. NATL CTR. FOR INJURY PREVENTION AND CONTROL, CTR. FOR DISEASE CONTROL AND PREVENTION, THE NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY: 2010 SUMMARY REPORT (2011), http://www.cdc.gov/violenceprevention/pdf/nisvs_executive_summary-a.pdf. Id at 1. Child Sexual Abuse Statistics, THE NATL CTR. FOR VICTIMS OF CRIME, http://www.victimsofcrime.org/media/reporting-on-child-sexual-abuse/child-sexual-abuse-statistics (reporting 1 in 5 girls are victims of sexual abuse). See Jennifer Steinhauer, Proposed Bill Targets Assaults on Campus, N.Y. TIMES, July 31, 2014, at A14. See generally Brenda V. Smith, Sexual Abuse of Women in United States Prisons: A Modern Corollary of Slavery, 33 FORDHAM URB. L.J. 571, 57274 (2006); ALLEN J. BECK & PAIGE M. HARRISON, BUREAU OF JUSTICE STATISTICS, U.S. DEPT OF JUSTICE, NCJ-231169, SEXUAL VICTIMIZATION IN PRISONS AND JAILS REPORTED BY INMATES, 200809 (2010). Amy OLeary, In Virtual Play, Sex Harassment is All Too Real, N.Y. TIMES (Aug. 1, 2012), http://www.nytimes.com/2012/08/02/us/sexual-harassment-in-online-gaming-stirs-anger.html?4_r=0; Online Harassment Gets Real for Female Gamers, NPR (Aug. 8, 2012), http://www.npr.org/2012/08/08/158433079/virtual-harassment-gets-real-for-female-gamers. Gail Sullivan, Video: Woman Harassed 108 Times as She Walks Around New York, WASH. POST (Oct. 29, 2014), https://www.washingtonpost.com/news/morning-mix/wp/2014/10/29/video-woman- harassed-108-times-as-she-walks-around-new-york/. 347 348 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 13:2 military, where sexual assault against female enlistees is endemic, and where we are still wringing our hands trying to figure out to what do to about it.8 Really, we are trying to figure out what to do about sexual violence against women everywhere. To be sure, there were broad reforms to sexual assault laws in the 1970spassing rape shield rules, eliminating the marital rape exception, retiring the utmost resistance requirementbut the sense is those changes have been only somewhat successful in reducing sexual assault. Indeed, the problem of violence against women seems an intractable one. In 1994, Congress passed the Violence Against Women Act.9 California has recently modified a sexual assault law.10 And the American Law Institute is in the process of revising the sexual assault provisions of the Model Penal Code.11 But mostly, we have been doing a lot of hand wringing. The goal of this Essay is not to suggest further reform, even though I have championed reforms elsewhere.12 Rather, the goal is to question the very concept of violence against women. Let me make sure up front that the record is clear: Violence against women is a serious problem, and reveals lacunae in the law and the culture. But is it possible we lose somethingsight of the bigger picture? the goal of true gender equality?when we talk about violence against women? Let me say something else up front. This Essay does not purport to have definitive answers to those questions. But I do think these are questions worth asking. I began this Essay by referring to the numbers we all know well. And certainly, when it comes to violence against women, as a framing device, and as a reality, there are advantages to numbers and statistics. But there are also advantages to stories.13 I begin, in Part II, with three. Collectively, these three stories set the stage for the remainder of this Essay. In Part III and IV, I interrogate both the terms women and violence. The heart of the Essay, however, is in Part V, where I imagine other terminology, and imagine a criminal justice system that allows those treated as subordinates, as subjects, to become subjects in their own right See Lisa M. Schenk, Informing the Debate about Sexual Assault in the Military Services: Is the Department of Defense Its Own Worst Enemy?, 11 OHIO ST. J. CRIM. L. 579, 58085 (2014). Pub. L. No. 103-322, §108 Stat. 1902 (1994) (codified as amended in scattered sections of 8, 16, 18, 20, 28, and 42 U.S.C.). Aaron Mendelson, California Passes Yes-Means-Yes Campus Sexual Assault Bill, REUTERS, (Aug. 29, 2014), http://www.reuters.com/article/2014/08/29/us-usa-california-sexcrimes- idUSKBN0GT0U920140829. Model Penal Code: Sexual Assault and Related Offenses, AM. LAW INST., http://www.ali.org/projects/show/sexual-assault-and-related-offenses/. See, e.g., Bennett Capers, Real Rape Too, 99 CAL. L. REV. 1259, 1265 (2011); I. Bennett Capers, Real Women, Real Rape, 60 UCLA L. REV. 826, 87074 (2013). Of course, there is a rich tradition of storytelling in feminist scholarship. See generally Kathryn Abrams, Hearing the Call of Stories, 79 CAL. L. REV. 971, 1041, 104445 (1991). 2016] ON VIOLENCE AGAINST WOMEN 349 II. THREE STORIES Three stories then. For reasons that will become clear, I may change some of the names and switch some of the details, but the gist of the stories will be remain undisturbed. Even with the name changes, I am sure some of the stories will seem familiar from criminal law casebooks or the media. Story Number One. A professional football playerlets call him Jay Tice is on an elevator with his girlfriend at the Revel Casino Hotel in Atlantic City, New Jersey, where they are having an argument, which he decides to put an end to by punching her in the face.14 And quite literally, the argument ceases since she is knocked out cold. In fact, he has to literally drag her limp, unmoving body to get her out of the elevator. Since we have become a nation where surveillance cameras are everywhere, including elevators at the Revel Casino Hotel, the entire incident is captured on videotape, which is then broadcast on the entertainment and gossip show TMZ.15 Following the public outcry, a grand jury indicts Tice on charges of third degree assault. The very next day, Tice marries his girlfriend, which normally would mean his girlfriends/wifes testimony against him could no longer be compelled.16 But even without the availability of the adverse spouse privilege, the marriage has the effect of suggesting that the law can stand down, that everything is okay, that it was just a spat. Tice applies for a pretrial intervention program that will spare him prison time and expunge the arrest from his record. Three weeks later, a court accepts his bid for intervention (anger management classes) in lieu of prison. Two days later, Tice and his now-wife hold a press conference during which Tice publicly apologizes to everyone who was affected by the situation me and my wife were in.17 Then his wife takes the podium and apologizes for her actions, stating, I do deeply regret the role that I played in that incident that night.18 Story Number Two. Ana and Dionisios, two recent Greek immigrants working in a paper mill in Camas, Washington, with family back in the old See Louis Bien, A Complete Timeline of the Ray Rice Assault Case, SBNATION.COM, (Nov. 11, 2014), http://www.sbnation.com/nfl/2014/5/23/5744964/ray-rice-arrest-assault-statement- apology-ravens; Michael Powell, What Were They Thinking? Ugly Video, Blind Justice, N.Y. TIMES, Sept. 14, 2014, at SP1. See Bien, supra note 14. The surveillance video can be found at TMZ.com. Ray Rice Elevator Knockout Raw Footage, TMZ http://www.tmz.com/videos/0_8lll4tx8/ (last visited March 21, 2016). Normally, marriage would trigger a spousal privilege. However, New Jersey disallows the privilege when the spouse-defendant is charged with a crime against the non-defendant spouse. See N.J. R. EVID. 501(2). Full Transcript from Ray Rice News Conference, BALTIMORE SUN (May 23, 2014), http://www.baltimoresun.com/sports/ravens/ravens-insider/bal-full-transcript-from-ray-rice-news- conference-20140523-story.html. Id. 350 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 13:2 country, are boarders in the same house, and occasionally socialize together.19 From Anas point of view, the relationship is completely platonic, theyre just friends, no friend with benefits here.
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